Conducting a fair disciplinary hearing
According to the Labour Relations Act, (LRA) a dismissal is unfair if it is not effected for fair
reasons and in accordance with fair procedure. Section 188 of the LRA stipulates - a dismissal
is unfair if the employer fails to prove the reason for the dismissal is fair based on the
misconduct or incapacity of the employee.
A dismissal is fair if based on the operational requirements of the employer and the dismissal
was effected in accordance with fair procedure.
Companies should have policies and procedures in place that conform with the requirements
of the LRA and most importantly with schedule 8 and the “Code of Good Practice on
Dismissal”
All individuals involved with disciplinary issues should be familiar with the LRA and schedule 8
in particular. In addition the CCMA is now laying a greater emphasis on the need for such
person to have received training on the LRS and Schedule 8. The reason for this is that the
majority of cases appearing before the CCMA are failing due to lack of procedural fairness
and/or substantive fairness i.e. managers failing to abide by the terms of the codes.
What should Managers do in the event of a possible dismissal of an employee?
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Conduct an investigation to determine whether there are grounds for disciplinary
action in the first place and possible dismissal (Substantive fairness). This does not
need to be a formal enquiry or hearing.
The errant employee should receive notification of the allegations in a language they
can reasonably understand
Permit the employee reasonable time to prepare a defence – not less than 2 days –
and to be assisted by a union rep or a colleague.
After the enquiry the employee should be advised of the decision both verbally and in
writing. If the decision is to dismiss the employee then the reason for such dismissal
should be given based on the facts of the case.
Advise the employee of the right to appeal
Apply the procedures both consistently and fairly
Procedural fairness refers to a disciplinary hearing, but the hearing does not have to be a
formal situation.
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In paragraph 3(2), the Code states “Efforts should be made to correct employees
behaviour through a system of graduated disciplinary measures such as counselling
and warnings.”
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In paragraph 3(3), the Code states “Formal procedures do not have to be invoked
every time a rule is broken or a standard is not met. Informal advice and correction is
the best and most effective way for an employer to deal with minor violations of work
discipline“
The employer is required to give the employee a fair opportunity to state his or her defence.
Paragraph 4(1)states: “The employee should be allowed the opportunity to state a case in
response to the allegations.”
Once the procedures above are followed then the employer is deemed to have followed fair
procedure.
Companies who have their own procedures as set out in the company policy document must
follow these procedures but at all times ensure it adheres to the requirements of schedule 8.
I advocate that for less serious offences the approach should be informal and for more serious
offences rather take a more formal approach. In the more formal situation I advocate the use
of an external chairperson but at minimum a totally impartial chairman
Insubordination is an example of a serious offence requiring more formal disciplinary action. It
would be considered a serious form of misconduct and the majority of employers would view
dismissal as an option. In such a situation an employer should conduct a formal disciplinary
hearing.
In other cases where dismissal is not contemplated, an informal enquiry is considered to be
procedurally fair.
In summary - The Code requires that before dismissing an employee the employer should
The employer should conduct an investigation
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An employer must inform the employee of the allegations in a manner the employee
can understand
The employee should be allowed reasonable time to prepare a response to the
allegations
The employee must be given an opportunity to state his/ her case
An employee has the right to be assisted by a shop steward or other employee
The employer must make a decision based on fact
The employer must consider track record, disciplinary history and mitigating
circumstances
The employer must inform the employee of the decision (preferably in writing) in a
manner that the employee can understand
The employer must give clear reasons for dismissing (if applicable) to the employee
The employee must be advised of the right to appeal the decision
The employer must keep records of all disciplinary actions taken against each
employee, stating the nature of misconduct, disciplinary action taken and the reasons
for the disciplinary action
© Des Squire (Managing Member)
AMSI and ASSOCIATES cc
Cell 0828009057
des@amsiandassociates.co.za